Denial of Justice Under NAFTA Article 1105: A Review of 20 Years of Case Law

This article examines one ground of complaint which has been consistently raised by investors in the context of their claims of breach of the fair and equitable treatment standard under NAFTA Article 1105: allegations of denial of justice by the host State and its failure to respect due process. The present article analyses the most salient features of NAFTA Chapter 11 case law regarding these two concepts. Specifically, this article analyses how NAFTA tribunals have interpreted and applied the exhaustion of local remedies rule. It also examines the different 'tests' that have been put forward by them to determine whether or not a denial of justice has been committed. Finally, this article addresses the actual scope and contours of the prohibition against denial of justice and the obligation of due process and the different circumstances under which tribunals have concluded that these standards have been breached.